Offense
Vehicle taking, temporarily or permanently
Aggravated Felony (AF)
Always an AF if a year or more is imposed. Get 364 days or less.
This is a change based on the 2023 Pugin decision. See Advice.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT regardless of info in the ROC.1CIMT: The minimum conduct to commit § 10851 is a taking with intent to temporarily deprive, and that conduct is not a CIMT. Because § 10851 is not divisible under the categorical approach, no conviction of 10851 is a CIMT for any immigration purpose, regardless of information in the record. Almanza-Arenas v. Lynch, 815 F.3d 469 (9th Cir. 2016) (en banc).
This is not changed by BIA precedent that expands the definition of theft as a CIMT to include not only permanently, but “substantially” depriving the person of ownership benefits, by depriving the owner for a long time. The BIA acknowledges that joyriding (which includes depriving property for a few hours or days and is covered by § 10851) does not meet that new definition. Matter of Diaz-Lizarraga, 26 I&N Dec. 847, 850-51and n. 10 (BIA 2016); Matter of Obeya, 26 I&N Dec. 856 (BIA 2016). (Note that the new standard articulated in Diaz-Lizarraga and Obeya does not apply retroactively to convictions received before their publication date, which was November 16, 2016. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1292 (9th Cir. 2018).)
To give D extra protection against an adjudicator’s mistake, try to make a specific plea to intent to deprive temporarily. But if that is not possible, note that many adjudicators know that 10851 is not a CIMT.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF. See citations and further discussion here.2 10851 as an AF. Before June 2023, in the Ninth Circuit no conviction of VC §10851 was an AF, even if a year or more was imposed. Under 8 USC 1101(a)(43)(G), (S), both a “theft” offense and an “obstruction of justice” offense are AFs with a year or more. The Ninth Circuit had found that auto-taking under § 10851 met the generic definition of “theft,” but that accessory after the fact under § 10851 did not meet the generic definition of obstruction as defined in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020). The Ninth Circuit further found that under the categorical approach, § 10851 was not divisible between auto-taking and accessory. Because § 10851 was overbroad and indivisible, no conviction could be found an AF. Lopez-Marroquin v. Barr, 955 F.3d 759, 760 (9th Cir. 2020)
Now we must assume that every conviction of § 10851 is an AF. In Pugin v. Garland, No. 22-23 (June 22, 2023), the Supreme Court rejected the Ninth Circuit’s definition of obstruction of justice and held that accessory after the fact (under a Virginia statute) is obstruction. It is extremely likely that the Ninth Circuit will find that California accessory after the fact also is obstruction, and that Pugin overturned both Valenzuela Gallardo and Lopez-Marroquin. This means that any violation of § 10851 comes within either theft or obstruction, so if a year or more is imposed the conviction is an AF.
Offenses that meet the generic definition of theft or obstruction of justice offenses are AFs if a year or more is imposed. 8 USC 1101(a)(43)(G), (S).
VC 10851 includes auto taking, which meets the definition of “theft,” and being an accessory after the fact to the taking, which we must assume meets the definition of “obstruction of justice” under Pugin v. Garland, No. 22-23 (June 22, 2023). Defenders must assume that any conviction of 10851 is an AF if a sentence of a year or more is imposed.
Immigration advocates should try to vacate the conviction. Advocates will argue that Pugin should not apply retroactively to convictions from before September 11, 2018, but we cannot rely on that. For further discussion of Pugin and arguments, see Advice to PC 32, above, and see ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023).
For information on how to structure a sentence to avoid a year or more for immigration purposes, see § N.4 Sentence.
Alternatives. If a year will be imposed, or might if there is a VOP, plead to PC 459, 1st or 2nd degree. This is immigration neutral (except it is a to DACA).
Note that a plea to grand theft, PC 487, may not be safe. While 487 can take a sentence of a year or more without being an AF, it will be an AF if on the same count there is a sentence of a year or more, and the loss to the victim/s exceeds $10,000. See Advice to PC 484, above. If the car at issue might be worth more than $10,000, ICE might charge 487 with a year as an AF.
SB54: This is one of the few wobblers that is not an exception under SB54 and so should not be transferred to ICE.